FPSLREB Decisions

Heard at Lethbridge, Alberta,
October 28 and 29, 2015, and October 12 to 14, 2016,
and at Ottawa, Ontario,
February 21, 2017.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        Shannon Davidson (“the grievor”) is employed by the Canada Border Services Agency (CBSA or “the employer”) as a border services officer (BSO) in the general technical group, classified at the FB-03 group and level. At the relevant time, her position was located at the CBSA’s Coutts, Alberta, Port of Entry (POE).

2        On September 2, 2009, the grievor received discipline in the form of a three-shift suspension without pay (the equivalent of 30 hours) for insubordination for refusing to comply with a direct order and for being in contravention of the Customs Enforcement Manual (“the manual”), Part 6, “Searches and Enforcement Actions - Persons”, Chapter 7, “Criminal Code Offences Policy and Procedures”. Section 37 of that chapter states as follows: “Designated officers will apply the law in accordance with on-going [sic] jurisprudence and according to the direction of the local Crown Counsel.” The action that gave rise to the discipline was the grievor’s arrest of a traveller (“Mr. A”) for driving with a suspended licence or while disqualified, after she had received both verbal and written directions from management directing her not to make the arrest.

3        On September 2, 2009, the grievor grieved the discipline and as corrective action requested the following:

• that all discipline she received be retracted;
• that all copies of the disciplinary letter and all related documents be removed from her personnel files and any CBSA files and that they be destroyed in her presence;
• that she be returned all lost wages, premiums, and benefits; and
• that any and all corrective action be taken that is appropriate in the circumstances.

4        The employer denied the grievance at the final level of the grievance process, and the grievor referred it to the former Public Service Labour Relations Board (PSLRB) under s. 209(1)(b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

6        In September of 2009, William Axten was the chief of operations for the CBSA’s Southern Alberta District. The Coutts POE fell under his chain of command, and the grievor reported to him indirectly that way. At the time of the hearing, Mr. Axten was the assistant director for enforcement and intelligence for the CBSA’s Prairie Region.

7        On September 2, 2009, the grievor received a letter of discipline from Mr. Axten, which stated as follows:

This letter is further to your meeting of June 22^nd, 2009 with local management regarding the fact-finding into the allegation that on May 7, 2009 you were working at the Port of Coutts, AB and you failed to abide by CBSA policies, procedures and guidelines and were insubordinate in failing to carry out an instruction given by your supervisor in regards to the arrest of a traveler.

The fact-finding process has determined that on May 7, 2009 you arrested a traveler after receiving both verbal and written direction from management directing you not to arrest this individual for driving while suspended/disqualified as it “is not supported or authorized by CBSA Management at the port of Coutts, Alberta – as per the advice of Crown Counsel given this day May 7, 2009”. The investigation determined this written directive was hand-delivered by management to yourself [sic] approximately 45 minutes prior to you making the arrest. Subsequent to this direction, you nonetheless arrested the traveler. The arrest of an individual is a very serious matter; it invokes the individual rights under the Charter thus opening the CBSA to potential civil lawsuits and expensive litigation.

As a result of this fact-finding investigation, I have determined that your conduct on May 7, 2009 was contrary to the expected standards of conduct specified in the CBSA Code of Conduct – Democratic and Professional Values. Based on the investigation I find your actions constitute insubordination as you refused to comply with a direct order given by a manager. Secondly, you were in contravention of the Customs Enforcement Manual Part 6 Chapter 7 – Criminal Code Offences, which states “Designated officers will apply the law in accordance with on-going [sic] jurisprudence and according to the direction of the local Crown Counsel”.

In determining an appropriate disciplinary measure, I have taken into account all mitigating and aggravating factors including (but not limited to) the seriousness of the incident, your length of service with the federal government, your demonstrated lack of remorse and the absence of any disciplinary record.

In accordance with the authority delegated to me by section 12(1) of the Financial Administration Act, I have decided to issue a three (3) shift suspension equivalent to 30 hours. The suspension will be served on September 10, 11 and 12

As a Border Services Officer you are trained to enforce laws and regulations. In the future, you must ensure that you comply with all relevant legislation and departmental policies and procedures. Failure to comply may result in further disciplinary action, up to and including termination of employment. It is expected that in the future, you comply with all lawful direct orders made by your manager.

…

[Emphasis in the original]

8        The relevant sections of the manual at Chapter 1 of Part 6, entitled “Arrest and Detention Policy and Procedures”, are as follows:

POLICY STATEMENT

1. It is the policy of the Canada Border Services Agency (CBSA) to arrest and detain suspected persons when the arrest and detention is lawful and is conducted in accordance with these policy guidelines.

…

5. Subsection 495(1) – Authorizes officers to arrest persons found committing or known to have committed a criminal offence.

6. Subsection 495(2) – Sets limitations on when an officer will arrest persons found committing or known to have committed a criminal offence.

…

10.Section 9 – Everyone has the right not to be arbitrarily detained or imprisoned.

…

16.This policy applies to all customs officers in the performance of their duties under the Customs Act, the Excise Act or the Criminal Code.

…

19.Except in exigent circumstances, officers will notify their superintendent of an arrest or detention as soon as possible.

20.Superintendents will review decisions concerning the detention or arrest of a person and discontinue the detention or arrest where it is evident that charges will not be laid or the person’s presence at Customs is no longer required.

…

9        Chapter 7 of Part 6 , entitled “Criminal Code Offences Policy and Procedures”, states in part as follows:

          POLICY STATEMENT

1. It is the policy of the Canada Border Services Agency (CBSA) to sanction designated officers to enforce the Criminal Code and other federal statutes in accordance with the Customs Act and other pertinent Acts of Parliament.

…

4. Subsection 163.5(1) - A designated officer, when at a CBSA office and performing normal duties of an officer or is acting in accordance with section 99.1 has, in relation to a criminal offence under any other Act of Parliament, has [sic] the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code, and subsections 495(3) and 497(3) of that Act apply to the designated officer as if they were a peace officer.

…

11.Subsection 495(1) – A designated officer may arrest without warrant:

1. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
2. a person whom he finds committing a criminal offence; or
3. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

12.Subsection 495(2) – A designated officer may not arrest a person without a warrant for:

1. an indictable offence mentioned in section 553; Note: See Appendix A for a list of section 553 offences.
2. an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction ....

…

37.Designated officers will apply the law in accordance with on-going [sic] jurisprudence and according to the direction of the local Crown Counsel.

38.Designated officers will adopt specific procedures for Criminal Code and other federal statute enforcement to be consistent with the enforcement practices of the police agency of jurisdiction, as set out in the police agency of jurisdiction agreements/Memorandum of Understanding (MOU).

…

Regional Managers and Superintendents

60.Regional Managers and Superintendents are responsible for:

a) ensuring compliance with this policy and procedures;

…

f) monitoring, identifying, and addressing deficiencies in Criminal Code offence enforcement activities;

…

h) abiding by the conditions set out in agreements or Memorandum of Understanding (MOU) negotiated with the police agency of jurisdiction on matters related to Criminal Code enforcement;

…

k) taking appropriate corrective action on any breaches of this policy.

…

[Emphasis in the original]

10        The police agency with jurisdiction in the Coutts POE area is the Milk River detachment of the Royal Canadian Mounted Police (RCMP). Entered into evidence was a copy of a document entitled “Protocol Between Canada Customs – Port of Coutts Southern Alberta District and Milk River RCMP Detachment Pertaining to persons arrested by Canada Customs and subsequently turned over to Milk River RCMP” (“the Protocol”). It was signed in 2001 when customs enforcement functions were exercised by the Canada Customs and Revenue Agency. Its preamble states as follows:

On May 12, 1998, the Canada Customs Act was amended granting Customs Officers new powers to arrest individuals suspected of committing or having committed a Criminal Code offence and detain an individual in custody until the appropriate police agency arrives. The legislation provides designated Customs Officers with the authority to act in a first response capacity, thereby bridging the gap between the time a Customs Officers encounters an offence at the border and the local police authorities respond. Designated Officer training will focus on four areas including, Impaired Driving, Child Abduction, Possession of Stolen Property and Arrest Warrants.

…

The Milk River RCMP Detachment acknowledges existence of the Canada Customs Policy on the Enforcement of the Criminal Code by Customs Officers and Related Standard Operating Procedures. The Milk River RCMP further acknowledges that this document is still under development. Until the completion of this policy, Canada Customs agrees to adopt the policy and procedures referenced in this Protocol.

…

[Emphasis in the original]

11        Paragraphs 1, 3, 4, and 16 of the Protocol state as follows:

1. Only “designated” customs officers, who have successfully completed the appropriate training course and have been issued a certificate of designation will be authorized to exercise the powers granted under the new provisions.

…

3. The primary responsibility for designated customs officers will remain the administration and enforcement of the Customs Act and its regulations, and the other government department or agency legislation for which they have responsibility.

4. The expanded powers will be used only to “respond” to criminal offences that are identified during the performance of normal duties at a designated port of entry. This means that the designated officer’s role will be limited to identifying the offence, detaining or arresting the individual, administering the approved caution and rights to counsel, search and seizure of property, and turning the person over to the Milk River RCMP Detachment. No further criminal investigation or prosecutorial activities other than supplying testimony when called upon to do so, will be undertaken by designated officers, with regard to the new expanded powers.

…

16. The expanded powers will not be exercised with regard to “provincial” offences (including provincial Highway Traffic Act violations or its equivalent.).

…

12        The grievor joined the CBSA’s predecessor in 1994. In May of 2009, she was a BSO working at the Coutts POE and was assigned to traffic operations, which could include interviewing travellers as they first enter the country in the Primary Inspection Line (PIL), interviewing and inspecting them and their vehicles and possessions at what is known as the Secondary Inspection Line (“secondary”), or dealing with them at the counter.

13        At the time of the hearing, Douglas Bakke was a superintendent with the CBSA. At the time of the events relevant to this grievance, he was either a superintendent or an acting superintendent working at the Coutts POE. He started in that position on April 1, 2009. He has been with the CBSA or its predecessor organizations since June of 1996. He described his superintendent duties and responsibilities as including being responsible for managing the day-to-day operations of the Coutts POE, including but not limited to scheduling and supervising employees, handling complaints and grievances, and dealing with diverse human resources issues. He is currently responsible for between 50 and 60 employees. At the relevant time, he was responsible for between 55 and 65 employees. The grievor would have at times reported to him. In May of 2009, Mr. Bakke reported to Lorelei VandenBerg.

14        Sometime before May of 2009, the RCMP charged Mr. A under s. 253(1)(b) of the Criminal Code (R.S.C., 1985, c. C-46), whichdeals with operating a motor vehicle while having a blood alcohol level that exceeds 80 mg of alcohol in 100 mL of blood.

15        The evidence disclosed that under the Traffic Safety Act (R.S.A., 2000, c. T-6), when a charge under s. 253(1)(b) of the Criminal Code is laid, the charged person’s provincial driver’s licence (“the licence”) is automatically suspended. The evidence was not clear about the specifics of the provincial legislation that was in effect at the time, just that in such a case, the licence would be suspended.

16        Mr. Bakke testified that on May 5, 2009, he delivered a shift briefing at 7:30 a.m., at which the grievor was present. The briefing included an item about Mr. A. According to the information available at the briefing, it was believed that Mr. A had a suspended licence. If the CBSA saw him driving, the Milk River RCMP detachment would be interested in being informed about it. Mr. Bakke stated that during the briefing, the grievor indicated that she thought that the CBSA could arrest Mr. A if it caught him driving across the border.

17        The grievor also testified about that briefing, stating that Mr. A had been charged with impaired driving at the Coutts POE.

18        An email dated May 4, 2009, sent at 8:49 a.m., was entered into evidence and was attached to a copy of Mr. Bakke’s briefing sheet. The relevant portions of it are as follows:

          Subject:       [Mr. A] (Driving)

…

As discussed, Clay encountered this subject and he has had his license suspended as a result of being charged with an Impaired Driving offense. His temporary license ran out on April 28th and he is currently marked as “Suspended” in CPIC.

He was driving [vehicle identification omitted] when we encountered him driving impaired.

He has a [vehicle identifications omitted] registered to him, but registration looks expired.

When Clay encountered him he was driving an old reg/burgundy car

…

He is suspended for 6 months pending his charges. This is an automatic suspension. Cpl DEVOE issued it and would most likely be interested if we catch him driving.

…

[Emphasis in the original]

[Sic throughout]

19        Darryl Anderson is a superintendent with the CBSA at the Del Bonita, Alberta, POE and in May of 2009 was a superintendent at the Coutts POE. He has been one since July of 2006.

20        Mr. Bakke testified that after the shift briefing, he spoke with Mr. Anderson, who advised him that he thought that with respect to Mr. A, the potential offence of driving with a suspended licence was under provincial jurisdiction. As such, the CBSA was without authority to arrest him. Mr. Bakke stated that after that discussion, he called the Milk River RCMP detachment and left a message inquiring about Mr. A and asking whether his licence suspension had resulted from a conviction or if it had been an administrative suspension, done under provincial legislation. Mr. Bakke said that after leaving that message, he spoke to two other superintendents, Rylan Schaffer and Esther Smith.

21        In the spring and summer of 2009, and since 2006, Ms. Smith was a superintendent with the CBSA at the Coutts POE. Since 2007, the same was true for Mr. Schaffer. They have both since retired.

22        Mr. Bakke said that Mr. Schaffer told him he thought an arrest depended on the originating offence that Mr. A had been charged with. Mr. Bakke said that he and Ms. Smith consulted s. 259 of the Criminal Code to determine the nature of the offence and that their inquiry led them to determine that if the licence suspension was as a result of a conviction, then the driver would be disqualified pursuant to the Criminal Code. Subsection 259(4) of the Criminal Code states as follows:

          Operation while disqualified

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

[Emphasis in the original]

23        Mr. Bakke stated that as of May 5, 2009, he was not certain how Mr. A’s licence came to be suspended.

24        Mr. Bakke stated that after his discussions with Messrs. Anderson and Schaffer and Ms. Smith and the review of the Criminal Code, he emailed Bryan Lang, who at that time was the manager of the Training and Learning Directorate for the CBSA in Winnipeg, Manitoba, seeking his opinion. However, he did not hear back from Mr. Lang for several days.

25        On May 6, 2009, Mr. Bakke again delivered the morning shift briefing. He told the staff that based on the information they had with respect to Mr. A, it was likely that if he was caught driving as he crossed the border, he would potentially be breaking a provincial law with respect to the licence suspension. So, the CBSA could not carry out an arrest. Mr. Bakke stated that at that briefing, the grievor reiterated her view that she believed that the CBSA could arrest Mr. A. Mr. Bakke stated that he recalled the grievor stating that she was “100% positive” about it.

26        Mr. Bakke stated that after the May 6, 2009, morning briefing, he and the grievor discussed the issue of the CBSA’s jurisdiction to arrest Mr. A. He stated that she reaffirmed her belief that it could arrest him for driving with a suspended licence and offered to call her spouse, a member of the Lethbridge Regional Police Service (LRPS) in Lethbridge, Alberta, to explain it to Mr. Bakke. He stated that she did call her husband, Sergeant Wade Davidson and that she passed the phone to him.

27        Sgt. Davidson testified. He has been with the LRPS since 2005. Between 2008 and 2014, he was a constable in the Traffic Response Unit, within which his duties included traffic enforcement. In 2014, he became a sergeant in the Patrol Operations Unit, and from 2015 to the date of his testimony, he was a sergeant in the Traffic Response Unit, in which his duties and responsibilities included overseeing all LRPS traffic enforcement activities. Before working there, he had been employed with the CBSA (or its predecessor) for nine years.

28        Mr. Bakke stated that Sgt. Davidson told him what the LRPS does with respect to processing suspended drivers. He recalled that Sgt. Davidson’s advice to him was to arrest Mr. A.

29        Sgt. Davidson produced typewritten notes that he stated he made shortly after the May 6, 2009, conversation with Mr. Bakke. The notes state in part as follows:

…

          Bakke had two main questions,

1) Was there a difference between suspension and disqualification and,

2) Was the person arrestable for the criminal offence made out in section 259(4) of the Criminal Code (driving while disqualified).

I advised Bakke the terms disqualification and suspension where often used interchangeably and the “suspended” status of a licence showing a on a query could apply to several scenarios; including court ordered prohibitions, provincial driver control board orders, demerit suspensions, and administrative suspensions. I further advised Bakke the type of suspension has to be determined by querying the driver’s licence information through a provincial database (MOVES), before determining whether the individual should be charged with a provincial Traffic Safety Act offence or with a criminal offence. As CBSA had no direct access to MOVES their determining the nature of suspension would be difficult and would have to be left to their responding police agency (RCMP).

To address Bakke’s second question, I advised him the individual could be arrested for driving while disqualified, regardless of the type of suspension, and further advised him to confirm this with the RCMP. I cited section 259(4) [text of section omitted] for Bakke and advised him the Criminal Code authorized arrest of the individual. I further explained to Bakke there are different thresholds of proof required for convicting a person, versus prosecuting a person, versus charging a person, versus arresting a person. With CBSA being in a unique “first responder” role, I advised Bakke the wishes of the RCMP, who would be determining the appropriate charge, should be followed. I also told him the individual should be aware of the highest level of jeopardy they may face and arrested, chartered and cautioned accordingly.

I informed Bakke that, as a police officer I was able to access MOVES determine the appropriate charge and issue release documents, often without requiring arrest of the individual under the Criminal Code or Traffic Safety Act authority. As CBSA was not in the same position, I recommended the individual be arrested and held for the RCMP to release, and reiterated that he should seek clarification from the RCMP on what they wanted done.

…

[Sic throughout]

30        Sgt. Davidson stated that mandatory licence suspensions began in Alberta roughly in about 2006 but that the structure changed in 2012. When asked if the CBSA could enforce provincial driving suspensions, he stated that it could not and that as far as he knew, it never enforced provincial offences. He went on to state that as far as he knew, only offences under the Criminal Code could be enforced.

A. May 7, 2009

31        On May 7, 2009, both the grievor and Mr. Bakke were on shift at the Coutts POE. Mr. Bakke stated that he received a call from a PIL that Mr. A was seeking entry into Canada, and the BSO asked what to do. Mr. Bakke stated that he instructed the BSO to send Mr. A to secondary, which he did.

32        Mr. Bakke stated that after that, he spoke with Ms. Smith, and they then spoke with another superintendent, Steve Singer, who did not testify. According to Mr. Bakke, Mr. Singer advised them that he believed that if Mr. A was breaking any law, it was provincial, and as such, the CBSA could not arrest him. Mr. Bakke stated that Mr. Singer suggested that they call the local Crown Counsel’s office.

33        Mr. Bakke testified that in Ms. Smith’s presence, he called the local Crown Counsel in Lethbridge and conveyed to that person the facts as he knew them, without specifically identifying Mr. A. According to Mr. Bakke, the Crown Counsel advised him that it appeared that Mr. A was in breach of a provincial statute and therefore could not be arrested by the CBSA. Mr. Bakke stated that the Crown Counsel advised him that the CBSA could provide evidence to the local police of having witnessed Mr. A driving while his licence was suspended.

34        Ms. Smith testified that she participated in that conversation. She stated that when she and Mr. Bakke spoke to the Crown Counsel, they did not identify Mr. A or the facts. They only wanted to be clear as to whether the CBSA could arrest someone for driving with a provincial licence suspension. The Crown Counsel advised them that if the licence had been suspended provincially, the RCMP could arrest him, and the CBSA could be a witness to the driving.

35        BSO Colin Van Dyk was in secondary and dealt with Mr. A when he arrived there. According to the evidence, Mr. Van Dyk reported that he smelled alcohol and that he found undeclared alcohol and tobacco. With respect to the smell of alcohol, Mr. Van Dyk requested assistance with the alcohol screening device (ASD). He did not testify.

36        Mr. Bakke stated that he determined that the grievor was the most experienced officer with respect to using the ASD, so he instructed her to provide Mr. Van Dyk with a refresher on it. Mr. Bakke stated that the grievor then told him that even if Mr. A passed the ASD test, she would arrest him on the licence suspension. He stated that he told her that he had advice from the local Crown Counsel that the CBSA could not arrest Mr. A and that he was confident with that advice. He stated that the grievor told him that if he was ordering her not to make the arrest, she would like it in writing. Mr. Bakke said that he told her that he would do that. He stated that at that point, he went to his office, typed a written instruction for her (“the May 7 written instruction”), returned to secondary (where she had gone to assist Mr. Van Dyk), and gave it to her.  

37        The May 7 written instruction is as follows:

          May 7, 2009

1000

Re: Arrest of Suspended driver [Mr. A] [DOB]

Please be advised that the arrest of the above subject (for driving while suspended/disqualified) is not supported or authorized by CBSA Management at the port of Coutts, Alberta – as per the advice of Crown Counsel given this day May 7, 2009.

The details of this decision can be discussed at your convenience.

…

38        Mr. Bakke stated that after delivering the May 7 written instruction to the grievor, he returned to his office, and that a short time later, he saw Mr. A being led to the cell block in handcuffs.

39        The grievor testified that on May 7, 2009, Mr. Bakke interrupted her when she was otherwise engaged in work (specifically, a seizure) and that he instructed her to give Mr. Van Dyk an ASD refresher. Her evidence was that other BSOs had been available to assist with the ASD. She testified that she told Mr. Bakke at that time that she was 100% sure she had the authority to arrest Mr. A and that if Mr. Bakke sent her to assist Mr. Van Dyk, she would arrest Mr. A. The grievor stated that at this point, they had a discussion, and that Mr. Bakke told her that he had spoken to Crown Counsel, and then he said, “He thinks we can’t.” She stated that she reiterated her position to Mr. Bakke that she was 100% certain that the CBSA could arrest Mr. A.

40        The grievor stated that after that discussion, she went to the secondary area, where she gave Mr. Van Dyk the ASD refresher. He then administered the ASD test. Mr. A did not fail it but received a grade of “Warn”, meaning that his blood alcohol level was somewhere between 50 and 99 mg of alcohol in 100 mL of blood.

41        The grievor stated that after administering the ASD, she and Mr. Van Dyk returned to the office area, where they ran a Canadian Police Information Centre (CPIC) check on Mr. A. She stated that it disclosed that Mr. A’s licence had been suspended but that it did not state why. She said that for specific information as to the exact reason for a suspension, access to a provincial database, known as the Motor Vehicle Enforcement System (MOVES), is required, which is not available to the CBSA.

42        The grievor testified that after the CPIC check, Mr. Van Dyk called the Milk River RCMP detachment and left a message for an officer to call back. Constable Beaupre phoned later and spoke to the grievor. The grievor testified that at that point, Mr. Bakke handed her the May 7 written instruction.

43        The grievor’s discussion with Cst. Beaupre did not yield any further information on Mr. A’s licence suspension. According to her, Cst. Beaupre suggested that she call Corporal (now Sgt.) Judith Devoe. The grievor stated that she did so and that she told Sgt. Devoe that Mr. A had registered a Warn on the ASD and that his licence showed up as suspended in the CPIC. She stated that she said the following to Sgt. Devoe: “If you want to come down, we can arrest under s. 259(4)”, although the grievor stated that she could not remember if she said it as a statement or a question.

44        The grievor testified that she also said the following to Sgt. Devoe: “I told her he had been charged with impaired driving at the port, and she told me, ‘absolutely’.” The grievor stated that she then arrested Mr. A.

45        Mr. Bakke testified that before arresting Mr. A, the grievor did not advise him that she had spoken to the RCMP.

46        On May 7, 2009, the grievor wrote a narrative report. It was entered into evidence. Its relevant portions read as follows:

On May 7, 2009 while working Traffic Operations the Commercial Supt. D. BAKKE asked me to assist BSO C. VAN DYK in doing an ASD on a subject they had in the Commercial warehouse because he wanted someone who had experience with the ASD. I asked if it was the subject that we were waiting for, [Mr. A] who was driving on a suspended drivers licence from a previous impaired at the Port of Coutts. BAKKE confirmed that it was [Mr. A], who then gave me the ASD to bring to Commercial Secondary with me to use. [Mr. A] was a resident of [omitted] who worked for the [omitted].

When I got to Secondary VAN DYK was waiting for the ASD, I gave him a quick refresher on the ASD and he proceeded to go to the waiting room to confront [Mr. A].

- 09:50 VAN DYK gave the ASD demand to [Mr. A] who stated he understood.

- 09:51 [Mr. A] blew into the ASD, which then registered an “A” for warn.

We told [Mr. A] to have a seat. VAN DYK had found undeclared alcohol and tabacco that [Mr. A] had hidden under the vehicle in the parking lot.

VAN DYK phoned the Milk River RCMP office and left a message with the steno to have whoever was on-call to phone him at the port.

Cst. P. BEAUPRE phoned back and stated he would be able to attend for the suspended driver and ASD warn but he would not be here for another 1 1⁄2 hours. BEAUPRE stated he thought it was Sec. 259(4) of the Criminal Code that authorized the arrest of a suspended driver but because he was so recent out of Police Depot that he wanted to verify that with Cpl. J. DEVOE. BEAUPRE phoned me back and stated he might be able to come down sooner than originally thought but did not have an answer from DEVOE. Instead of BEAUPRE calling DEVOE back and then calling me back I thought it would be quicker for me to call DEVOE directly.

I phoned DEVOE and explained to her that [Mr. A] was driving the vehicle with a suspended drivers license, resulting from a prior impaired, and [Mr. A] just blew an “A” warn on the ASD. DEVOE directed me to use Sec 259(4) of the Criminal Code to arrest [Mr. A] for driving while disqualified and Cst. BEAUPRE sould be down to the Port.

- 10:28 I arrested [Mr. A] under S. 259(4) of the Criminal Code for driving while disqualified. Rights and Caution were given.

- 10:30 BSO VAN DYK frisked [Mr. A].

- 10:34 I escorted [Mr. A] to cells. Read full Arrest/Rights/Caution. [Mr. A] stated he understood what was being said to him. [Mr. A] declined a lawyer.

VAN DYK cleared the South Cell and I placed [Mr. A] into it. [Mr. A] stated he had no medical concerns and was not on any medication at the time.

- 11:35 RCMP Cst BEAUPRE arrived.

- 11:45 Cst BEAUPRE asked me to release [Mr. A] as he was ready to issue him his documents.

- 11:45 Myself and RIO D. DEGENSTEIN went to release [Mr. A] to the waiting room.

Cst. BEAUPRE then issued [Mr. A] his documents and VAN DYK finished his K19 for the undeclared Alcohol and Tobacco.

…

[Sic throughout]

47        Mr. Bakke testified that after Mr. A was arrested, he went to the cell block where Mr. A was being held and had a discussion with the grievor. He stated that she said that she thought she might be disciplined and that she would fight it. He said he recalled her saying the following to him: “You do what you have to do.” With respect to this discussion, the grievor stated that Mr. Bakke was not happy with the situation and that he told her that it was not over. She stated that she replied as follows: “I did what I did; you do what you have to do.”

48        On May 7, 2009, at 4:28 p.m., Mr. Bakke emailed his supervisor, Ms. VandenBerg, copying Mr. Axten, about Mr. A’s arrest. The email stated in part as follows:

          Subject:                 [Mr. A]

…

          I need to report an incident that happened this morning May 7.

… As you might know, he was charged with impaired driving a few weeks ago. He has also been suspended from driving pending his first court appearance. He’s been seen by our BSO’s driving the [vehicle identification omitted] and they know he’s suspended.

The question that arose was, can we arrest him. There has been some confusion among both BSO’s and Superintendents about this - and it came to a head today.

[Mr. A] arrived at P6 in the [vehicle identification omitted] at 0845. Tyler B. called me and asked what we we [sic] were doing with him. I advised to send for a cab exam and I’d get back to him. I contacted RCMP Dispatch with a request for MR detachment to call me. I had been trying to get an answer to the arrest question since yesterday - MR RCMP was not returning my calls … anyway Esther and I ended up calling [name omitted](crown prosecutor) in Lethbridge. He advised that this case appeared to be a violation of a Provincial Statute – so he recommended that we NOT arrest.

Colin calls from the warehouse and advises that [Mr. A] is having a K19 seizure (booze & cigarettes) and that we need an ASD as he appears intoxicated. Colin said he was qualified using the ASD but hadn’t done one, so wanted a BSO with ASD experience to attend. It happens that Shannon has the most experience with ASD’s – so I sent her.

Also happened that Shannon has the opinion that we should be arresting [Mr. A] for the driving offense. In fact, we had a heated discussion in my office yesterday on that very subject – but that is another story.

She told me that if I sent her to do the ASD and he doesn’t fail (ie – can’t arrest for the alcohol offense) – that she will arrest for the driving offense. I advised that on the recommendation of the Crown Prosecutor - that she not arrest. She maintained that she would – and wanted an order in writing for her not to arrest. I went to the effort to provide this to her, and I kept a copy.

RCMP did finally call back, Shannon took the call – and Shannon says Judy Devoe advised her to arrest [Mr. A] pursuant to Sec 259 CC (driving while suspended). Shannon arrests subject and places in cells. Phillipe arrives, takes custody of the subject and seizes the [vehicle identification omitted]. A tow truck later arrives and hauls the [vehicle identification omitted] away.

That’s the short version of the story – to give you a heads up. Esther and Darryl were both here while this all happened. Colin VD assisted Shannon with the arrest – but I do not implicate him with any action taken by Shannon.

I have talked to Shannon since, and she is expecting some sort of disciplinary action.

…

 [Sic throughout]

49        Also entered into evidence was an undated written statement that Ms. Smith identified as having been made by the grievor . The grievor stated that she made it on or about May 7, 2009. It reads as follows:

I object to and claim privilege from the use of all, any part or parts of this statement in any proceeding, whether criminal or civil and including disciplinary proceedings, or in any investigation or inquiry. Subject to the above and in compliance with and only under the compulsion of your order, I submit the following:

As per the briefing file there was a lookout issued for [Mr. A] on May 4, 2009 stating [Mr. A] was a suspended driver who was driving through our Port. [Mr. A] worked for [name omitted] and lived in [location omitted]. Lookout indicated Cpl. J. DEVOE would have an interest in [Mr. A].

I had several discussions with A/Supt. D. BAKKE concerning our authority to arrest [Mr. A].

On May 7, 2009, while I was working Traffic Operations at the Port of Coutts and conducting a seizure action, A/Supt. D. BAKKE asked me to assist BSO C. VAN DYK in doing an ASD on [Mr. A] in the Commercial warehouse. A/Supt. D. BAKKE stated that he had no one else to assist VAN DYK as there were no other BSO’s who had experience with ASD’s. There were many other BSO’s at the Port who all had been trained on using the ASD, including A/Supt. D. BAKKE, but A/Supt. D. BAKKE wanted me to help so I complied.

There was still a disagreement about whether or not we had the authority to arrest [Mr. A] for driving while suspended. I asked A/Supt. D. BAKKE to put in writing what his decision was.

A/Supt. D. BAKKE wrote the following:

Please be advised that the arrest of the above subject (for driving while suspended/disqualified) is not supported or authorized by CBSA Management at the port of Coutts, Alberta – as per the advice of Crown Counsel given this day May 7, 2009.

The details of this decision can be discussed at your convenience.

After I confirmed that the subject was [Mr. A] and BSO C. VAN DYK completed the ASD test on [Mr. A], we called our local responding RCMP. Cpl. J. DEVOE directed me to arrest [Mr. A] using Sec 259 (4) of the Criminal Code.

In good faith, and because an offence was currently taking place, I arrested [Mr. A] for driving while disqualified S. 259(4) of the Criminal Code. It was in the very best interest of public safety to stop [Mr. A] from continuing this offence.

…

EN Manual Part 6 Chapter 1 Paragraph 20 – A/Supt. BAKKE is responsible for discontinuing the arrest of the person if he believed charges were not going to be laid.

Cst. P. BEAUPRE of the Milk River RCMP attended and issued the appropriate documents to [Mr. A]. This ended my dealings with [Mr. A].

…

[Emphasis in the original]

[Sic throughout]

50        The grievor was asked in her examination-in-chief if before Cst. Beaupre arrived at the Coutts POE and released Mr. A, whether she had been aware that Mr. A’s licence had been suspended under the Traffic Safety Act (R.S.A., 2000, c. T-6), to which she stated the following: “We had no idea; we have no access to that system so we can’t check that.”

51        Later in her examination-in-chief, when the grievor was asked a similar question about specific knowledge of Mr. A’s licence suspension, she replied as follows: “No one knew what the suspension was for. I believe there was still confusion with management.”

52        The grievor’s counsel then asked her if there was anything else she wanted to add with respect to the day of the arrest, to which she stated the following: “I arrested the traveller on what I believed based on what Judy [Sgt. Devoe] told me. I didn’t make the arrest for the RCMP. You have to form your opinion if the offence was committed.”

53        At the time of her testimony, Sgt. Devoe was the detachment commander at Killam, Alberta. In 2009, she held that position in Milk River. She testified that she recalled receiving a call from the grievor, who was at the Coutts POE, during which the grievor asked her if she had the authority to arrest Mr. A under s. 259 of the Criminal Code for disqualified driving. Sgt. Devoe testified that she received that call at her home on a day off.

54        Sgt. Devoe stated that she asked the grievor why Mr. A was disqualified from driving and that the grievor told her that it had been for impaired driving. Sgt. Devoe stated that she told the grievor that she had the authority to arrest him because it was a Criminal Code offence.

55        Sgt. Devoe testified that after that call, she went to the detachment to help Cst. Beaupre because he was new and was not clear on the paperwork. Sgt. Devoe stated that when they filled out the paperwork, she noted that there was no conviction date, so she called the RCMP Communications Centre. The information it provided to her disclosed that Mr. A’s licence had been suspended under provincial legislation. Therefore, the RCMP could not charge him under s. 259(4) of the Criminal Code but onlyfor a provincial offence, which the RCMP did.

56        Sgt. Devoe stated that had Mr. A been convicted of impaired driving and had he had his licence suspended because of that conviction, driving with that suspension would have been a Criminal Code offence. But had he not been convicted and been awaiting trial, then it would have been only a provincial offence. Sgt. Devoe stated that she instructed Cst. Beaupre to go to the Coutts POE and issue a provincial disqualification ticket. So Cst. Beaupre went there, issued the provincial disqualification ticket, and released Mr. A from custody.

57        Sgt. Devoe was asked specifically if she had asked the grievor to arrest Mr. A on behalf of the RCMP. She replied that she had not.

58        Sgt. Devoe stated that she did not make any notes of the conversation with the grievor.

59        In cross-examination, Sgt. Devoe was asked if the grievor had said anything about Mr. A’s licence being suspended provincially or federally. She replied that the grievor had not. She was also asked what she told the grievor when she asked if she could arrest Mr. A. Sgt. Devoe replied that she told the grievor that she could if a Criminal Code offence was involved.

60        In cross-examination, Sgt. Devoe also stated that after she realized that Mr. A’s licence had been suspended under provincial legislation, she did not call the Coutts POE.

61        Ms. Smith and Mr. Schaffer were tasked with carrying out a fact-finding into the grievor’s May 7, 2009, arrest of Mr. A. Shortly after being so tasked, Mr. Schaffer was removed from it and was replaced by Mr. Anderson. According to Mr. Schaffer, he was never advised as to why he had been removed.

62        Ms. Smith testified that at the time the fact-finding was starting, two BSOs told her that they had seen Mr. Schaffer and the grievor together in his office at his desk and that they had been discussing how they could show that the CBSA had the authority to arrest Mr. A. Ms. Smith went into the office that contained Mr. Schaffer’s desk (and the desks of two other superintendents) and saw a copy of the Criminal Code opened at the sections dealing with driving offences and driving while disqualified. Ms. Smith testified that she was concerned about collusion between Mr. Schaffer and the grievor. She asked her superior to remove her from the fact-finding. In cross-examination, she was asked in extensive detail about the identities of the two BSOs. However, she had no recollection of who they were or what they looked like.

63        Mr. Axten testified that he and Ms. VandenBerg reached a decision to remove Mr. Schaffer from the fact-finding because of a concern Ms. Smith had raised about issues of transparency and bias involving him.

64        After Mr. Schaffer had been removed from the fact-finding, Ms. Smith continued it with Mr. Anderson. She testified that she collected documents, conducted interviews, and made notes and summaries of the interviews. She did not write a report. She stated that she handed over the material she collected. She was not involved in determining whether to discipline the grievor or the extent of the discipline.

65        Ms. Smith interviewed Sgt. Devoe, Cst. Beaupre, and the grievor with respect to their discussions of May 7, 2009. Ms. Smith spoke to Sgt. Devoe on two occasions, the first on May 16, 2009, with Messrs. Bakke and Schaffer present. The handwritten notes of both Ms. Smith and Mr. Bakke were entered into evidence. Ms. Smith also typed her notes after the telephone conversations with Sgt. Devoe. The handwritten notes of Ms. Smith and Mr. Bakke are similar but are not identical.

66        Sgt. Devoe stated that she recalled a discussion with Ms. Smith after the fact and that although she could not recall it in detail, she did recall that Ms. Smith asked her if she had directed the grievor to arrest Mr. A on behalf of the RCMP, to which Sgt. Devoe stated that she had not. Sgt. Devoe stated that she also recalled telling Ms. Smith that she told the grievor that she had the authority to arrest Mr. A if he was committing a Criminal Code offence. Sgt. Devoe stated that she told Ms. Smith that at the time she had the conversation with the grievor, she did not know if Mr. A’s licence had been suspended provincially. Sgt. Devoe stated that she told Ms. Smith that she recalled the question from the grievor being quite specific.

67        Sgt. Devoe took no notes of her telephone conversation with Ms. Smith.

68        Ms. Smith testified that Sgt. Devoe said that she was familiar with Mr. A, that the grievor had told her that Mr. A was at the Coutts POE, and that the grievor asked questions about a suspended licence under s. 259 of the Criminal Code. Ms. Smith stated that Sgt. Devoe told her that she was at home when the call came and that Sgt. Devoe then went to the Milk River RCMP detachment and learned that the licence suspension was only provincial, so she instructed Cst. Beaupre to release Mr. A.

69        Mr. Schaffer offered no testimony about the interview with Sgt. Devoe; nor did he produce any notes.

70        Ms. Smith’s May 16, 2009, handwritten notes of her telephone discussion with Sgt. Devoe are as follows:

• Judy assumed the fellow was charged
• Told Shannon to go ahead
• Then called telecoms and got info fm telecoms that was provincial
• Told Phil (Cst. Beaupre) cannot arrest – must release

          Shannon

          We both assumed it was criminal code

          Was in process of writing out PTA.

          Saw not convicted – DUI chgs.

          Can’t remember Shannons’ exact words

          Don’t recall

          She asked me if she could arrest under 259(4) of CCC for susp lic.

          Said yes

          Not till after I found it was file in process

I was under impression moment told lic susp because chg’d impaired – assumed? Convicted.

She Shannon never did say it was a provincial chg susp. Never mentioned possibility

          Can’t remember exact conver

          Just he was there, blew a warning, was susp for driving w/impaired

          I made the assump

Can’t say for sure anything prov mentioned because it would have made things click+ I would have dealt w/as prov.

Convers. Maybe I will need to record more info between officers. Will do so for now on.

…

[Sic throughout]

71        Ms. Smith stated that she spoke to Sgt. Devoe again after she had interviewed the grievor.

72        Ms. Smith testified and her notes indicate that she interviewed the grievor, in the presence of Mr. Anderson and a bargaining agent representative, on June 22, 2009. Ms. Smith’s notes of that interview, which the grievor reviewed and initialled, were entered into evidence. The relevant portions read as follows:

          [The words in bold are the questions, and the grievor’s answers are not in bold.]

…

2) On May 7^th [Mr. A] attended the port as a traveller; he was also the driver of the vehicle. Before dealing with [Mr. A] you were advised by A/Supt Bakke that he had received advice from the Crown Prosecutor’s Office that they would not support an arrest. At this time did you verbally advise A/Supt Bakke that you would be arresting [Mr. A] regardless of the direction of both the Crown Prosecutor’s office and local management?

Don’t remember. Talked about it before. He asked me to get involved, I got involved. I arrested him once Judy (RCMP Cpl) requested. I formed the opinion after my conversation with Judy.

a. Do you recall requesting A/Supt Bakke to forget the conversation between the two of you occurred and to just let you go?

No. I recall him saying that we’re friends, he would have a hard time if he had to hand out discipline, I told him he had the stripes and if you need to do discipline, you need to do what you need to do and I did what I needed to do. Conversation took place after guy was in cells. We discussed for 2-21/2 days. I always thought he was arrestable. I don’t think anyone would question that. I asked Supt Bakke to put his thoughts in writing about what was said, what wasn’t said. Bottom line, if I form the opinion that someone is arrestable, I arrest and I don’t arrest if I don’t. Supt Bakke came to me when I was directly involved in a seizure as I was the only one who knew what they were doing. He had no one in commercial and no one in traffic who knew what they were doing.

3) I requested written direction and the written directive read as follows, “Please be advised that the arrest of the above subject (for driving while suspended/disqualified) is not supported or authorized by CBSA Management at the port of Coutts, Alberta – as per the advice of Crown Counsel given this day May 7, 2009”. As you were provided a written directive, why did you proceed in arresting [Mr. A]?

You had support from the Crown. But I had support from local police agency.

Management said the Crown wouldn’t support the arrest. I had support/request from local RCMP.

You didn’t from the Crown Prosecutor. We don’t call the Crown Prosecutor.

We did this time. The way I saw it, there was a CCC offence, I had the authority to arrest, choice – let him drive up the road impaired, half cut, had suspended driver’s licence, public safety.

Had a warn? Should be released. .10, could have been impaired. Did not say arrested for a warn, he was half-cut. Was not arrested for that. He was arrested for being disqualified. Public safety, was best interest to let go … opinion is absolutely not.

What is the difference when RCMP say arrest and Crown Prosecutor not? … You said you form your own opinion (directed to BSO Davidson) how did that happen? That seems contradictory? Is Crown Prosecutor a Peace Officer?

No, but is an officer of the court. We are first response to RCMP, we do what we do, they do what they do. If they say no to come and lay charges, we don’t arrest. Warrants – have the authority to arrest but don’t when they can’t come. We are first response, talk to RCMP, if that’s what they want, we do it and I have formed my opinion. I have to form the opinion and the RCMP attends, they ultimately lay the charges.

You formed belief he was arrestable? I’m first responder, formed opinion and belief that he was arrestable.

Cpl DeVOE requested the arrest? Absolutely.

…

[Sic throughout]

73        The bargaining agent representative did not testify.

74        Ms. Smith testified and her notes indicate that when she put it to the grievor that Sgt. Devoe requested the arrest, the grievor stated, “Absolutely.”

75        Ms. Smith’s notes indicate that the May 7 written instruction was put to the grievor. When it was pointed out what it says about the local Crown Counsel, the grievor said that she “had the support of the local police agency”. When it was reiterated that the Crown did not support the arrest, the grievor reiterated that she “had the support and the request from the local RCMP”. She stated as follows: “The way I saw it, there was a CCC [Criminal Code] offence; I had the authority to arrest.”

76        Ms. Smith testified that she spoke to Cst. Beaupre on May 16, 2009. She stated that he advised her that the grievor asked him some questions about arresting Mr. A. Cst. Beaupre stated that he did not know the answers, so he referred her to Sgt. Devoe. In cross-examination, Ms. Smith was not asked any questions about her notes of her discussion with Cst. Beaupre, which state in part as follows:

…

          Says heard Shannon explain

          Judy recognized as her case

          Thought had gone to court already.

          Advised Shannon can arrest.

          Before coming down to Port-Judy went to office, ran on CPIC, discovered not to court, provincial susp.

          That’s why was released [Mr. A] upon his arrival to the POE.

…

[Sic throughout]

77        Cst. Beaupre did not testify.

78        Ms. Smith testified that she spoke to Sgt. Devoe after interviewing the grievor because the grievor stated that the RCMP had requested that the CBSA arrest Mr. A. Ms. Smith stated that she asked Sgt. Devoe if she had asked the grievor to arrest Mr. A, to which Sgt. Devoe stated that she understood that the grievor was making the arrest after she asked whether she could or could not do it.

79        Mr. Bakke created a summary of the events leading up to and including the arrest of Mr. A., which is dated May 29, 2009, and states in part as follows:

                                                ...      

May 5, 2009

…

- 0730 – Briefing was delivered to Day shift … typewritten note by BSO Carruthers, put in briefing May 4. Indicating that BSO Rucker observed [Mr. A] driving. Email indicated that he was suspended for 6 mos. pending his charges (automatic suspension). RCMP interested if we catch him driving.

- This was also BSO Shannon Davidson’s first day back from days off.

- Discussion whether subject was arrestable by CBSA. I advised that I wasn’t sure, but I would find out.

- BSO Davidson advised that the subject was arrestable by us. “I’m 100% positive”.

…

May 6, 2009

-0730 – gave briefing to day shift. I advised that [Mr. A] was NOT arrestable as the suspension was provincial and we have no authority to arrest for provincial offences.

- Shannon re-iterated that subject WAS arrestable by CBSA. Discussion in briefing with her. I asked her to show me legislation where we were allowed to do this, as I need something to stand on. She said she would show me.

- Shannon came into my office after briefing, very upset that I “didn’t believe her”. I advised her that my briefing topic was based on advice given by Supt. Anderson the day before. She pulled the Criminal Code out and showed me S. 259(4)(5), driving while disqualified. She picked up the phone and called her husband, an LRPS member. She said he would explain it to me. He advised that LRPS arrests before finding out if the suspension is provincial or not. I accepted this conversation at face value- still confused on the issue; as I had not received any advise other than from Supt. Anderson. I told Shannon that I needed to hang my hat on something other than her word … Regarding S259, I said that I didn’t know if [Mr. A]’s suspension met the definition of “disqualification” – which would make him arrestable by CBSA. She said, “it doesn’t matter”.

(I later discovered that in order to fall under S259, the subject needs to be convicted of the offence; which was not the case with [Mr. A].)

…

- 0850 – second phone call made to Milk River RCMP regarding the status of [Mr. A]’s suspension. Message left, asking for advice on whether there is a difference between a suspension and a disqualification (CC)… Did not receive a reply.

…

May 7, 2009

- approx 0845 – Received a call from P6 from BSO Tyler Borg that [Mr. A] was at the booth.

…

- 0850 – I called RCMP Dispatch for MR detachment to call me. No response.

…

- approx 0900 – Esther and I called Steve Singer at home to ask his opinion. He said that [Mr. A] was likely NOT arrestable because it was a provincial matter. He suggested we call the Crown Prosecutor’s Office for advice.

- 0930 approx - called CP’s office and spoke with [name omitted]. His advice as to NOT arrest the subject and notify the RCMP. He said CBSA would provide driving evidence in any proceedings against subject. He said the subject was guilty of a provincial driving offence and was not arrestable under our authorities. The suspension is provincial pending his court appearance.

…

- I asked Shannon if she would assist Colin with an ASD demand and take the unit to secondary. She said she would, but added, “if he blows a pass – I will arrest him for the suspension”. I said that I had advice from the CP that didn’t support an arrest. She reiterated her position that the subject was arrestable, and that she would arrest him...

…

[Sic throughout]

80        Mr. Anderson testified before me that the grievor told him and Ms. Smith that she was of the opinion that the arrest was within the scope of her lawful duties, that it was a criminal arrest, and that she “was instructed to arrest by the RCMP”.

81        Mr. Anderson stated that he spoke with Mr. Bakke on the day of the arrest when Mr. Bakke asked him his opinion on whether he thought the CBSA had the authority to arrest Mr. A. Mr. Anderson stated that he told Mr. Bakke that he did not believe that the CBSA had that authority because he believed Mr. A’s licence had been suspended under provincial legislation, and the CBSA did not have authority in those circumstances.

82        Mr. Anderson testified that he confirmed with the local courthouse the charge against Mr. A, which had been laid was under the Traffic Safety Act for driving with a licence that had been suspended administratively under provincial legislation.

83        Mr. Anderson testified that the RCMP cannot give orders to CBSA officers and that while the CBSA respect the RCMP’s opinion and advice, they are a separate organization.

84        At the time of Mr. A’s arrest, Matthew Rilkoff was a BSO working at the Coutts POE. He was employed with the CBSA from 2007 to 2010. He was at the shift briefing when information about Mr. A and his licence suspension was discussed. He stated that had Mr. A arrived at the border when he was working the PIL, he would have referred Mr. A to secondary.

85        When Mr. Rilkoff was asked what he would have done had he been in secondary and Mr. A had approached, he said that he would have found out why Mr. A was referred there and that he would have carried out a CPIC inquiry. Mr. Rilkoff confirmed that while that inquiry would have shown that Mr. A’s licence had been suspended, it would not have stated why. Mr. Rilkoff stated that finding out why it had been suspended would have required calling the RCMP. He also testified that he understood that under the Customs Act (R.S.C., 1985, c. 1 (2nd Supp.)), a BSO has the authority to arrest someone, to enforce the Criminal Code. He stated that he also believed that a BSO has the authority to arrest persons for offences they committed under provincial legislation.

86        Mr. Rilkoff was working on the morning of May 7, 2009, when the events involving the arrest of Mr. A occurred. He stated that in his opinion, several other BSOs could have assisted Mr. Van Dyk with respect to operating the ASD and that Mr. Bakke did not have to send the grievor, who he knew had a strong opinion about arresting Mr. A.

87        The evidence did not disclose that anyone other than the grievor was disciplined for actions arising out of Mr. A’s arrest on May 7, 2009.

B. Similar fact evidence

88        The grievor testified about a situation that occurred before Mr. A’s arrest and that involved her and Ms. Smith. The grievor introduced an email into evidence dated the day before Mr. A’s arrest (May 6, 2009, at 1:43 p.m.), which she had sent to Ms. Smith. It states in part as follows:

…

As per our telephone conversation the other day about the ASD “warn” that I got. You told me to issue the 24 hour suspension on the subject and I basically refused stating I was not allowed to do this, the RCMP had to issue it. Feel free to forward this to [name omitted] as you had stated that it was her who told you we issued 24 hour suspensions

I just hope you now understand why I would not issue it, thought I would save you the time looking it up yourself.

…

89        The grievor stated that after she sent that email, she received no response or any direction on the issue it set out.

90        That email was put to Ms. Smith in cross-examination along with the following question: “Did you ever advise that you should issue a 24-hour suspension?” She replied that she did not recall doing so but confirmed that it must have happened, referring to the email.

91        The grievor testified that sometime in 2010, she once again encountered Mr. A entering the country at the Coutts POE, and once again, his licence had been suspended. She stated that at that time, she also arrested him, and she was not disciplined; instead, she received a commendation. An email from her supervisor was entered into evidence that commended her arrest of Mr. A at that later time (2010).

C. Documentary production issue and Mr. Schaffer’s evidence

92        This hearing was originally scheduled for October 28 and 29, 2015. On October 23, 2015, the Board received a request from the grievor for the production of certain documents, which included any notes, letters, reports, and emails written by the employer’s witnesses with respect to Mr. A’s arrest. On October 23, 2013, I ordered the disclosure of the documents.

93        The evidence in this matter was heard largely over two sets of days roughly a year apart (October 28 and 29, 2015, and October 12 to 14, 2016). During the second set of days, the grievor’s representative advised that the grievor had received documentation via an access to information (ATIP) request that had been made a significant amount of time before the hearing started. The documents had not been received until, in the bargaining agent representative’s words, “quite recently.” In addition, some of the documents might have been subject to my order of October 23, 2015.

94        This presented some difficult evidentiary issues, given that the employer had already completed its evidence and the grievor was about to put some potential documents to her remaining witnesses. In the ordinary course, those documents or questions arising from them should already have been put to previous witnesses.

95        Given these circumstances, I determined that the documents and related questions that were subject to the production order and that had been obtained through the ATIP request could be put to the grievor’s remaining witnesses with the condition that the employer could recall its witnesses, if it chose to, to address the issues that would have arisen solely due to the fact that these documents had not been in the grievor’s possession when those witnesses testified. With respect to any other documents obtained as part of the ATIP request and not covered by the production order of October 23, 2015, I ruled that I would wait and see if anything arose with respect to them.

96        Mr. Schaffer was the first witness at the reconvened hearing on October 12, 2016, which was after the ATIP document issue had been disclosed to me.

97        Mr. Schaffer’s evidence was largely about his removal from the fact-finding and the allegation that he and Ms. Smith had interviewed Mr. Bakke. Both Ms. Smith and Mr. Bakke denied that Mr. Schaffer and Ms. Smith had interviewed Mr. Bakke. No notes were produced indicating that an interview took place. However, an email chain, which was covered by my order of October 23, 2015, was produced that included the following emails:

• an email from Ms. Smith to Messrs. Schaffer and Bakke with copies to Mr. Axten and Ms. VandenBerg, dated May 26, 2009, at 8:22 p.m.; and
• an email from Mr. Bakke to Ms. Smith with copies to Messrs. Schaffer and Axten and Ms. VandenBerg, dated May 30, 2009, at 11:56 a.m.

98        In her May 26, 2009 email, Ms. Smith stated in part as follows:

…

Last week we were discussing the case regarding Shannon and some important details came up in the conversation. Could each of you write up a detailed account of your discussions/dealings/guidance with her in regard to the suspended licence issue. Be sure to include the fact that she said it didn’t matter whether the suspension was federal or provincial because both were arrestable, that she called her husband and had you speak with him, what was that conversation about … did he mention anything that indicated that he knew specifics regarding the situation. Whatever you can recall and put into writing regarding the situation may become useful.

…

99        After the close of the grievor’s case, the employer chose to again call three of its witnesses in reply, to specifically address evidence given by Mr. Schaffer.

100        Mr. Bakke was called in reply and was asked one question. The grievor’s representative asked for a recess to review and consider the ATIP-produced documents and advised the hearing that he was contemplating putting some of them to Mr. Bakke. This led to a further discussion on the ATIP-produced documents that were not covered by my production order of October 23, 2015. At that point, the grievor’s representative advised that while the ATIP request was made in 2012, the grievor in fact received the requested documents before the first day of the hearing (October 28, 2015). So, she had possessed them when all the previous witnesses gave their evidence. This was a complete contradiction to what I had been told the previous day.

101        The grievor then disclosed that she had had the documents before the October 2015 hearing days but that she did not disclose them to her bargaining agent representative until just before the October 2016 hearing days. This would have included the documents that on the previous day the grievor alleged had been subject to my order of October 23, 2015, and that the employer allegedly had not produced.

102        Given these facts, I ruled that I would not allow any further documents or questions that arose from the documents obtained via the ATIP request to be put to the employer’s reply witnesses who had already testified, as the grievor had possessed them from before the start of the hearing. They should have been put to the witnesses when they originally testified.

III. Summary of the arguments

A. For the employer

103        The employer submitted that on a balance of probabilities it has proven that the grievor was insubordinate on May 7, 2009, when she arrested Mr. A, against the verbal and written instructions of CBSA management. The employer’s position was that the discipline was proportionate and appropriate in all circumstances.

104        The evidence disclosed that Mr. Bakke consulted several people as to whether Mr. A could be arrested, including the local Crown Counsel. On May 6, 2009, Mr. Bakke briefed staff that Mr. A could not be arrested. The grievor disagreed with him, and a subsequent discussion took place, as did a phone call to her spouse, who was with the LRPS.

105        On May 7, 2009, Mr. A arrived at the Coutts POE and was referred to secondary, where Mr. Bakke asked the grievor to assist Mr. Van Dyk with the ASD. She advised Mr. Bakke that even if Mr. A passed the ASD test, she would arrest him. Mr. Bakke stated that he advised her that he had obtained advice from the local Crown Counsel, which he was prepared to follow. Mr. Bakke stated that the grievor told him that if he was ordering her to not arrest Mr. A, then she wanted it in writing. He obliged and produced the May 7 written instruction, which clearly indicates that CBSA management did not support or authorize arresting Mr. A for driving with the suspended licence.

106        The grievor was asked to provide Mr. Van Dyk with an ASD refresher, which she did. She was not asked to do anything else. She could have left secondary at that point but did not. Instead, she stayed there, called the Milk River RCMP detachment, and eventually spoke to Sgt. Devoe.

107        The grievor asked Sgt. Devoe if she had the authority to arrest Mr. A under s. 259 of the Criminal Code.Sgt. Devoe testified that she asked the grievor what Mr. A had been disqualified from driving for, and the grievor replied that it had been for impaired driving.

108        Mr. Bakke testified that he attempted to reach the RCMP but that he never did get through. The grievor did reach Sgt. Devoe but did not try to obtain relevant information from her.

109        The grievor did not tell Sgt. Devoe that CBSA management had not authorized arresting Mr. A; nor did she tell her that Mr. Bakke had contacted Crown Counsel, who had provided advice. Sgt. Devoe was at home and on a day off but because Cst. Beaupre was new and inexperienced, she went to the Milk River RCMP detachment, and after checking into it, determined that Mr. A had not been convicted of any charges.

110        When she spoke to Sgt. Devoe, the grievor had the opportunity to clarify the issue and to obtain accurate information on Mr. A’s licence suspension, but she did not. She should have advised Mr. Bakke that she had spoken with Sgt. Devoe; she did not.

111        The grievor’s written reports indicate that the RCMP had directed her to arrest Mr. A, which directly contradicts Sgt. Devoe’s evidence. She stated that she did not order, direct, or request the grievor or the CBSA to arrest Mr. A on her behalf or on that of the RCMP.

112        According to the evidence, Mr. A was detained for a little more than an hour. The grievor questioned whether as a superintendent Mr. Bakke could authorize Mr. A’s release.

113        Mr. Axten testified that after the arrest occurred, the grievor spoke to Mr. Bakke and at that point told him that she had spoken with the RCMP. At this point, Mr. Bakke did not know what she had discussed with the RCMP.

114        While the manual does speak to a superintendent having the authority to order a person released, it states that this can be done when it is evident that charges will not be laid or that the person’s presence is no longer required at the POE. However, that is not relevant because the grievor was disciplined for insubordination and for arresting Mr. A.

115        Mr. Bakke testified that the grievor told him after she made the arrest that she expected to be disciplined for it, which gives credence to the fact that she knew she had disobeyed a direct order.

116        Mr. Axten testified that when he decided to discipline the grievor, he took into account several mitigating factors, including that originally, she had shown no remorse, yet after a brief recess, she had shown some. He also considered her years of service and lack of a disciplinary record. He testified that he found the grievor insubordinate because she had failed to comply with an order. Arresting someone has consequences; Mr. A could have sued the CBSA. By arresting him, the grievor deprived him of his rights.

117        The grievor ignored the advice of the local Crown Counsel, which Mr. Bakke had provided to her.

118        The employer referred me to Cavanagh v. Canada Revenue Agency, 2015 PSLREB 7, Mullins v. Deputy Head (Department of the Environment), 2013 PSLRB 21, Focker v. Canada Revenue Agency,2008 PSLRB 7, Byfield v. Canada Revenue Agency, 2006 PSLRB 119, Noel v. Treasury Board (Human Resources Development Canada),2002 PSSRB 26, Trilea-Scarborough Shopping Centre Holdings Ltd. v. S.E.I.U., Loc. 204 (1990), 14 L.A.C. (4th) 396, and Volvo Canada Ltd. v. C.A.W., Loc. 720 (1990), 12 L.A.C. (4th) 129.

B. For the grievor

119        During the course of the grievor’s submissions, a disagreement arose between her and her bargaining agent representative, which was irreconcilable. Given the particular circumstances, the final hearing day was adjourned before her closing argument had completed to allow them to resolve their differences.

120        The hearing reconvened for the completion of the grievor’s argument on February 21, 2017, at which point she had a different bargaining agent representative, who concluded the closing argument. Reflected in this decision are submissions made by both representatives.

121        The grievor submitted that the question to be answered is whether she acted in a manner that would justify discipline. The employer had the burden of proof and did not discharge it.

122        Mr. Bakke never gave an order. The grievor arrested Mr. A after the RCMP instructed her to. She was not insubordinate and did not breach the Customs Act.

123        The employer did not act honestly and transparently when it carried out the investigation.

124        The employer submitted that Mr. Bakke called the Crown Counsel, who the employer stated advised to not arrest Mr. A. This is hearsay; the Crown Counsel did not testify. On the other hand, the grievor called the RCMP, which instructed her to make the arrest.

125        At no time did Mr. Bakke stop the grievor or, once the arrest had been made, release Mr. A. Mr. Bakke stated that he let the situation unfold.

126        Mr. Anderson stated that he did not originally know if Mr. A’s licence had been suspended due to a federal or provincial offence.

127        Sgt. Devoe stated that she received a phone call from the grievor, who asked if she could arrest Mr. A. After that call, Sgt. Devoe contacted the Milk River RCMP’s dispatch and determined that Mr. A had not been convicted. Therefore, the suspension was provincial, and as such, Mr. A could not be charged and had to be released. Sgt. Devoe never called the Coutts POE back.

128        Mr. Axten testified that no one else was disciplined. BSOs are to observe the Charter. He further stated that he viewed the grievor as a good officer; however, she was disciplined.

129        Mr. Bakke was aware of the grievor’s view on Mr. A’s suspended licence. He put her in the difficult position of dealing with Mr. A; he could have assigned someone else to assist Mr. Van Dyk but did not.

130        The grievor acted in good faith.

131        Ms. Smith lied about the interview with Mr. Bakke.

132        Ms. Smith stated that two BSOs told her that they believed that Mr. Schaffer and the grievor were discussing the investigation. However, Ms. Smith could not identify the BSOs, which put the wheels in motion to set the grievor up.

133        The grievor stated that she called the RCMP to confirm that the charges were federal, pursuant to the Criminal Code, and then determined that Mr. A could be arrested after that call. She believed that Mr. A was in the process of committing a criminal offence, as confirmed by the RCMP. She acted with due diligence.

134        The grievor tried to show Mr. Bakke that the authority was there. She made her intentions clear; there was no doubt in anyone’s mind that the grievor believed that she had the authority to arrest Mr. A for driving with his licence suspended.

135        In 2010, when the grievor arrested someone for driving with a suspended licence, she was given a commendation. No one told her at that time that she had made an unlawful arrest.

136        The May 7 written instruction is short and is not an order. It could have been more specific.

137        One of the grievor’s representatives submitted during his closing argument that the grievor had been set up. If Mr. Bakke had been so certain that Mr. A should not be arrested for driving with a suspended licence, he should not have sent the grievor to help in secondary. Her new representative submitted during his closing argument that Mr. Bakke sent the grievor to assist Mr. Van Dyk with the ASD because he trusted her and felt confident in her abilities.

138        There was confusion; the BSOs and superintendents were confused. Things could have been better handled.

139        The grievor referred me to Part 6 Chapter 1 of the manual, which provides for the right of everyone not to be arbitrarily detained or imprisoned and as well that the superintendents have the responsibility to review the arrest of a person and the authority to release a person from arrest. Once Mr. A had been arrested, Mr. Bakke could have released him; he did not, which condoned the grievor’s actions. He should have exercised his power to not continue, which goes to his credibility. He differed to the RCMP and the fact that Criminal Code charges would be laid.

140        A certain amount of flexibility and independent decision making are important in making a person a good BSO. The grievor acted in good faith, believing that a criminal offence was taking place. She believed 100% that the arrest of Mr. A was legal.

141        On the morning of the arrest, Mr. A had received a score of Warn on the ASD test.

142        Mr. Bakke’s evidence is questionable. His notes were made after the fact and appear designed to insulate and protect him from liability. If he was so convinced, why did he ask the grievor to assist Mr. Van Dyk? Why did he not discontinue the arrest after it occurred? He did not because he was still confused. Mr. Bakke should have and could have ordered Mr. A released; he did not, which goes directly to Mr. Bakke’s credibility.

143        The situation should be considered a learning experience. The grievor should not have to pay the price for it.

144        A proper fact-finding did not even take place. Ms. Smith and Mr. Anderson were involved with the incident at issue. The intention was for the grievor to pay the price; no one else was disciplined. Too many people who were involved in the incident were part of the fact-finding.

145        The grievor was consistent in her evidence and in her reports, which were consistent with the evidence of other witnesses.

146        The grievor testified that she has since made arrests of this nature when she has believed that unlawful actions were taking place.

147        The grievor referred me to United Steelworkers of America, Local 3257 v. Steel Equipment Co. (1964), 14 L.A.C. 356, Turner v. Treasury Board (Canada Border Services Agency), 2006 PSLRB 58, Flewwelling v. Canada,[1985] F.C.J. No. 1129 (QL)(C.A.), Courchesne v. Treasury Board (Solicitor General), PSSRB File No. 166-02-12299 (19820719), [1982] C.P.S.S.R.B. No. 119 (QL), Horne v. Parks Canada Agency,2014 PSLRB 30, and Esquimalt (Township) v. CUPE, Local 333 (2009), 96 C.L.A.S. 506.

148        The grievor requested that the grievance be granted and that she be reimbursed all monetary losses.

149        If in the alternative I find that discipline was warranted, it should be reduced. The grievor had many years of service with a good record and no discipline. This was an isolated incident and a momentary aberration and was a case of her acting in good faith.

C. The employer’s reply

150        The grievor referred to Ms. Smith’s May 16 notes, which mention the telephone interview with Sgt. Devoe. The grievor referred to the first page of those notes. The employer submitted that the notes have to be read in their entirety and specifically pointed to the reference on page two, where it states that Sgt. Devoe stated the following: “She Shannon never did say it was a provincial chg susp. Never mentioned possibility… Can’t say for sure anything prov mentioned because it would have made things click + I would have dealt w/as prov [sic throughout].”

151        Ms. Smith also typed up her interview notes. She had a second conversation with Sgt. Devoe on June 3, 2009. The notes refer to both Ms. Smith’s first and second conversations with Sgt. Devoe. Mr. Bakke’s notes were also entered into evidence.

152        The grievor referred to Ms. Smith’s May 16 notes, the reference to Cst. Beaupre, and the reference to the note that states, “Shannon can arrest.” The employer submitted that I should review Ms. Smith’s evidence on this point.

153        The grievor submitted that it was her decision to arrest Mr. A, which contradicted other submitted evidence, such as the following:

1. the grievor’s report, dated May 7, 2009, in which she wrote the following: “DEVOE directed me to use Sec 259(4) of the Criminal Code to arrest [Mr. A] for driving while disqualified and Cst. BEAUPRE would be down to the Port”; and
2. her report, undated, in which she wrote the following: “Cpl. J. DEVOE directed me to arrest [Mr. A] using Sec 259(4) of the Criminal Code.”

154        The grievor submitted that Mr. Bakke’s evidence was suspect because the reference in his May 29 report to May 9, 2009, at 7:30 a.m., noted as follows: “gave briefing to day shift. I advised that [Mr. A] was NOT arrestable as the suspension was provincial, and we have no authority to arrest for provincial offences”, and because a few hours later, he emailed Mr. Lang in Winnipeg, asking whether Mr. A could be arrested under s. 495 of the Criminal Code. The employer submitted that I must read the entire entry in Mr. Bakke’s May 29 report for May 9, 2009, because right after the meeting, he had a further discussion with the grievor. That led to the phone call with her husband in which the arrest issue was discussed further. That then led to the email to Mr. Lang.

155        The employer submitted that throughout the grievor’s testimony, she took no responsibility for her actions; she blamed the employer and the RCMP. Mr. Bakke should have released Mr. A after he learned of the arrest; Sgt. Devoe (or Cst. Beaupre) should have called the Coutts POE as soon as she learned that the offence had occurred under provincial jurisdiction and not under the Criminal Code. BSO Van Dyk should have stopped her from arresting Mr. A. This is contradictory to the position the grievor took at the disciplinary hearing, at which she initially showed no remorse and was frustrated, but after a short recess, she stated that she should have let Mr. Bakke speak to Sgt. Devoe on May 7, 2009. This was important to Mr. Axten when rendering the discipline and it went to the amount of discipline, at the end of the day.

156        With respect to Mr. Van Dyk’s involvement, Mr. Axten was never asked why he did not discipline him. The grievor could not rely on this point because she never asked why. And the evidence is clear that Mr. Van Dyk did not arrest Mr. A.

157        The grievor referred to the Protocol. At paragraph 4, it addresses the CBSA’s extended powers with respect to criminal offences. The employer submitted that that paragraph has to be read in conjunction with paragraph 16, which specifically states that those extended powers do not extend to provincial offences (including provincial highway traffic act violations).

158        The grievor took issue with Ms. Smith’s evidence and her good faith. Ms. Smith was asked only to conduct a fact-finding. She did not make any recommendations and did not participate in the discipline decision-making process. The grievor took issue with what she categorized as an earlier incident involving Ms. Smith, which is a different issue that is not at all relevant to this case, in which Ms. Smith stated the grievor had not been insubordinate.

159        The grievor raised an issue of Ms. Smith’s credibility that was allegedly referenced in evidence. That document was never entered into evidence.

160        The grievor submitted that the employer violated the rule in Browne v. Dunn(1893) 6 R. 67, H.L.When cross-examining Mr. Schaffer, the employer advised him of the anticipated contradictory evidence that Ms. Smith, Mr. Bakke, and Mr. Axten, would lead in reply, and Mr. Schaffer was given the opportunity to respond.

161        With respect to the mitigating factors submitted by the grievor, Mr. Axten considered some when determining the discipline to impose on her.

162        The grievor submitted that the grievance should be allowed and that the discipline should be set aside. In the alternative, it should at least be reduced to a written reprimand, and the situation should be treated as a learning experience.

163        The employer submitted that the grievor had a lot of experience, had had many discussions with respect to the arrest issue with her superior before making the arrest, and had clearly been instructed not to arrest Mr. A but did so anyway.

164        The employer referred me to Stewart v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 106 at para. 62, in which the adjudicator stated as follows: “As a BSO charged with the security of Canadian borders and as a peace officer, the grievor is expected to follow orders, to act in the best interests of Canadians, and to act at all times with integrity and honesty.”

IV. Reasons

A. Sealing of documents

165        The parties submitted as evidence copies of documents that dealt with the arrest and charging of a Canadian citizen with several Criminal Code and provincial offences. The individual was not a party to this proceeding. The arrest and charges against this individual form part of the record because of the actions the employer and the grievor took when they dealt with her employment relationship.

166        In Basic v. Canadian Association of Professional Employees,2012 PSLRB 120 at paras. 9 to 11, the PSLRB stated as follows:

9 The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public and accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41(CanLII).

10 However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering request to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions gave rise to what is now known as the Dagenais/Mentuck test.

11 The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted the test is as follows:

1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
2. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

167        The subject matter of this hearing was whether the grievor’s actions amounted to misconduct when she arrested Mr. A. The information contained in the documents with respect to Mr. A are relevant to the hearing only for demonstrating whether her behaviour was appropriate to carrying out her duties as a BSO or whether some of her actions constituted misconduct. Mr. A’s identity, as well as the specific details of his one or more arrests, charges, convictions, and sentences should not be in the public domain. A serious risk exists to Mr. A’s privacy, who was not party to these proceedings. Those personal circumstances are irrelevant to the matter before me. Indeed, Mr. A might have successfully appealed the one or more charges, convictions, or sentences rendered against him. He also could have sought and received a pardon or record suspension. Therefore, I order sealed the documents submitted and marked as Exhibit E-1, Tabs 18 and 19.

168        Many of the other documents entered as exhibits refer to Mr. A by name and identify his address as well as provide other identifying information such as the name of his employer, the location of his employment, and his motor vehicles, along with other information about them. It would not serve the interests of justice or the right of the public to open and free access to the justice system to have all those documents sealed. Given that Mr. A’s name and other identifying information does appear, often tangentially, in most of the other documents, I order that his name, address, name and location of employment, or other obvious identifying information, where they appear in those documents entered into evidence that are not sealed, be redacted from the record.

169        As set out in A.B. v. Treasury Board (Royal Canadian Mounted Police), 2016 PSLREB 23, the Board, at paragraph 105, ordered that it would temporarily seal its files for a period of two weeks to allow the parties to anonymize documents. I agree with this reasoning as being the least intrusive measure to balance the public’s right to open and accessible proceedings and at the same time protect the privacy of individuals who are not directly involved in the proceeding. I therefore order that all of the exhibits be sealed for a period of one calendar month from the date of this decision to allow the CBSA to provide to the Board redacted copies of those exhibits that contain the following information about Mr. A:

• his name, address and telephone number;
• the name, address and telephone number of his employer;
• the identification of any of his motor vehicles or those of his employer including licence plate numbers and Vehicle Identification Numbers.

170        It also appears, from a review of the Board’s file, that the parties identified Mr. A by name in their correspondence with the Board. As such, I order that the Board files redact the reference to Mr. A, and the following:

• his address and telephone number
• the name, address and telephone number of his employer;
• the identification of any of his motor vehicles or those of his employer including licence plate numbers and Vehicle Identification Numbers.

B. Merits of the grievance

171        Adjudication hearings with respect to discipline under s. 209(1)(b) of the Act are hearings de novo,and the burden of proof is on the respondent. Any issues with respect to the investigation of the facts that led to disciplining the grievor were remedied by the hearing de novo before me.

172        The usual basis for adjudicating discipline issues involves considering the following three questions (see Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162,[1977] 1 C.L.R.B.R. 1 (QL)): Was there misconduct by the grievor? If so, was the discipline the employer imposed an appropriate penalty in the circumstances? If not, what alternate penalty is just and equitable in the circumstances?

173        The discipline was imposed because the grievor arrested Mr. A on May 7, 2009, after she had received direction from management not to arrest him.

174        The grievor argued that what Mr. Bakke both said to her and then provided to her in writing was not an order; thus, absent an order, she could not have been found to have disobeyed one. Therefore, she could not have been disciplined for insubordination. She further argued that it was not a direction from local Crown Counsel as set out in Chapter 7 of Part 6 of the manual.

175        I heard a lot of evidence about how over the two days before the day of the arrest, Mr. Bakke was not certain if the CBSA could arrest Mr. A for his suspended or disqualified licence if he drove to the border and sought admission into Canada. The evidence disclosed that Mr. Bakke did not know if Mr. A could be arrested for his suspended licence because the CBSA possessed no evidence that disclosed how his licence had been suspended, either from a conviction due to an impaired driving offence or from an automatic suspension under provincial legislation without a conviction.

176        A licence can be suspended both under the Criminal Code, in which case driving with it while suspended would be a breach of that Act, or under provincial legislation (in this case the Alberta Traffic Safety Act). If the suspension was effected under the Criminal Code, it is within the CBSA’s jurisdiction. As such, a BSO would have the power to arrest the person. However, if the suspension was effected under the Traffic Safety Act, then it is not within the CBSA’s jurisdiction. As such, a BSO would not have the power to arrest the person. Mr. Bakke and the Coutts POE’s management and BSOs faced that uncertainty on May 5, 6, and 7, 2009.

177        While there was evidence of Mr. Bakke’s uncertainty over whether the CBSA could arrest Mr. A, the grievor did not share it. Her evidence, along with that of Mr. Bakke and several other witnesses, and documents that she authored, disclosed that her opinion was that Mr. A most certainly could be arrested if he drove across the border. Her evidence was that she was 100% certain in her belief, and indeed, she testified that not only as of the morning of May 7, 2009, this had not changed, but also that she told Mr. Bakke at the morning briefing that it did not matter that the CBSA did not know the reason Mr. A’s licence had been suspended; it was still a Criminal Code offence.

178        On the morning of May 7, 2009, Mr. A arrived at the Coutts POE driving a motor vehicle. At that point, Mr. Bakke was still somewhat uncertain as to whether Mr. A could be arrested for driving while his licence was suspended. Mr. Bakke had no definitive answer as to whether Mr. A’s licence had been suspended under the Criminal Code or the provincial Traffic Safety Act, despite the fact that he had taken several steps to make this determination. While he had called the Milk River RCMP detachment, it had not returned his calls or answered his question. Equally, the grievor had not changed her view on Mr. A.

179        In those circumstances, Mr. A arrived at the Coutts POE and then was directed to secondary, where Mr. Van Dyk dealt with him. He determined that Mr. A might have been drinking alcohol. Mr. Van Dyk needed assistance with respect to the ASD, and Mr. Bakke dispatched the grievor to assist him.

180        While the grievor followed this direction, went to secondary, and provided Mr. Van Dyk with the assistance he needed, in her evidence, she stated as follows:

• she told Mr. Bakke if he sent her to secondary, she would arrest Mr. A, even if the ASD result was not “fail”; and
• other BSOs were available and competent to assist with the ASD and could have been sent.

181        Mr. Bakke’s evidence was that he told the grievor that he had received advice from the local Crown Counsel that Mr. A could not be arrested because it was likely that his licence had been suspended under provincial jurisdiction. Mr. Bakke told her that he was confident with the advice he had received from the local Crown Counsel. He stated that the grievor told him that if he was ordering her not to arrest Mr. A, then she wanted it in writing. He said that the discussion ended with her assisting Mr. Van Dyk with the ASD. Mr. Bakke went to his office to write what became the May 7 written instruction.

182        Mr. A was tested with the ASD. According to the grievor, the ASD registered a reading of Warn, which meant that the alcohol level in 100 mL of blood had registered somewhere between 50 and 99 mg; an exact reading is not provided. Eighty mg of alcohol in 100 mL of blood is the maximum legal limit allowable under the Criminal Code.

183        According to the manual, when a Warn is registered, the BSO is to urge the driver not to continue driving; however, should the driver choose to continue on his or her way, the CBSA is not empowered to stop the driver.

184        The grievor’s evidence was that after the ASD test was administered, she and Mr. Van Dyk went to the office and ran a CPIC check on Mr. A. She testified that she told Mr. Van Dyk that they could not arrest Mr. A for the ASD’s Warn reading as it was not an offence under the Criminal Code. Therefore, the issue was the suspended licence.

185        The grievor’s evidence was that the CPIC result showed only that Mr. A’s licence had been suspended but not why or whether it was a Criminal Code or a provincial suspension. She stated that this information is available only in MOVES. However, that was nothing new. This was the precise question at issue on May 5, 2009, when Mr. Bakke and the grievor had their first discussion about whether Mr. A’s licence suspension could fall within the CBSA’s jurisdiction and allow it to arrest him.

186        Also at that point, the grievor stated the following:

• Mr. Van Dyk called the Milk River RCMP detachment and left a message, which eventually led Cst. Beaupre to call back and the grievor to speak with him;
• Mr. Bakke returned and gave her the May 7 written instruction;
• Mr. Bakke did not provide her with anything from the local Crown Counsel; and
• “we” did not know if it was a provincial or federal offence.

187        The grievor then stated that she called Sgt. Devoe, who testified. Her evidence was not congruent with the grievor’s.

188        According to the grievor, she told Sgt. Devoe the following:

• Mr. A was at the Coutts POE;
• he had been administered an ASD test and had registered a Warn;
• the CPIC showed his licence as suspended;
• if Sgt. Devoe wanted to come to the POE, she and the grievor could arrest Mr. A under s. 259(4) of the Criminal Code; and
• Mr. A had been charged with impaired driving at the POE.

189        According to the grievor, Sgt. Devoe stated that absolutely, the grievor could arrest Mr. A. On the other hand, Sgt. Devoe stated the following:

• she was at home when the grievor called;
• the grievor asked her if she could arrest Mr. A under s. 259 of the Criminal Code for driving while disqualified; and
• she stated that she asked the grievor why Mr. A was disqualified from driving and that the grievor replied, “for impaired driving”, to which Sgt. Devoe stated she told the grievor that she had the authority to arrest Mr. A as that is a Criminal Code offence.

190        After that call, the grievor arrested Mr. A, detained him for a little over an hour, and placed him in a cell at the Coutts POE until Cst. Beaupre arrived. Mr. A was then released. 191        The evidence disclosed that Mr. A was arrested only because he was driving with a suspended licence and that there was no other reason.

192        The letter of discipline signed by Mr. Axten stated in part as follows:

…

The fact-finding process has determined that on May 7, 2009 you arrested a traveler after receiving both verbal and written direction from management directing you not to arrest this individual for driving while suspended/disqualified as it “is not supported or authorized by CBSA Management at the port of Coutts, Alberta – as per the advice of Crown Counsel given this day May 7, 2009”. The investigation determined this written directive was hand-delivered by management to yourself [sic] approximately 45 minutes prior to you making the arrest. Subsequent to this direction, you nonetheless arrested the traveler. The arrest of an individual is a very serious matter; it invokes the individual rights under the Charter thus opening the CBSA to potential civil lawsuits and expensive litigation.

…

193        Cavanagh, at para. 235, states that the essential characteristic of insubordination “… is the notion of challenge to authority”. At paragraph 239, it states that a finding of insubordination requires proof of four things: that the employer gave an order, that the order was clearly communicated to the employee, that the person giving the order had proper authority to do so, and that the employee did not comply with the order on at least one occasion.

194        Paragraph 240 of Cavanagh sets out the recourse of an employee if he or she disagrees with a direction, which is to obey it and then grieve. While this is the rule, it does not mean there are no exceptions. However, exceptions to the “obey now, grieve later” rule should be made only in extraordinary circumstances. Byfield, at para. 23, refers to exceptions to that rule, such as receiving an unlawful order or perceiving a danger to health or safety.

195        “Authorize” is defined in the Canadian Oxford Dictionary as “give official permission for or approval to (an undertaking or agent)”. The wording in the May 7 written instruction was “not supported or authorized.” If “authorize” means to give permission or approval, the addition of the modifying word “not” to the words “supported and authorized” clearly indicates that the opposite situation existed.

196        I have no doubt that on May 7, 2009, the grievor understood that she was being instructed not to arrest Mr. A. Both her evidence and that of Mr. Bakke referred to her requesting the instruction in writing. Why else would that request have been made? It is clear that she and Mr. Bakke had had an ongoing dispute over the authority to arrest Mr. A with respect to the licence suspension. Their discussion on May 7, 2009, was about the authority to arrest Mr. A, and it took place at the precise point when she stated to Mr. Bakke that she would arrest Mr. A for driving with a suspended licence, no matter what the ASD disclosed. This state of affairs existed when Mr. Bakke left the grievor, went to his office, and wrote the May 7 written instruction.

197        Indeed, when the grievor wrote her undated written statement about the arrest, which she testified she did on or about May 7, 2009, she stated as follows:

I object to and claim privilege from the use of all, any part or parts of this statement in any proceeding, whether criminal or civil and including disciplinary proceedings, or in any investigation or inquiry. Subject to the above and in compliance with and only under the compulsion of your order, I submit the following:

…

[Emphasis added]

198        The evidence disclosed that Mr. Bakke did not report the issue of Mr. A’s arrest to his immediate supervisor until he emailed Ms. VandenBerg at 4:28 p.m. on May 7, 2009. In the second-last paragraph, Mr. Bakke stated the following: “I have talked to Shannon since, and she is expecting some sort of disciplinary action.”

199        The evidence of both Mr. Bakke and the grievor disclosed that they did have a discussion after Mr. A was arrested, while he was being held in a cell. Mr. Bakke stated that during that discussion, the grievor told him she thought she might be disciplined and that she said, “You do what you have to do”, while the grievor’s evidence was that Mr. Bakke was not happy and that she stated the following to him: “I did what I did; you do what you have to do.”

200        The grievor wrote an official report about Mr. A’s arrest on May 7, 2009, and was not interviewed as part of the fact-finding until June 22, 2009. The email Mr. Bakke sent to Ms. VandenBerg indicates that he had spoken to the grievor after the arrest and before sending that email, which indicates that she was expecting discipline. I suspect that it is in this vein that she made her undated written statement refer to an “order”. She testified that she made that statement on or about May 7, 2009, and that Mr. Bakke spoke to her after the incident. The only “order” would be the one not to arrest Mr. A.

201        Trilea-Scarborough, at para. 12, provides that if there might not have been a direct order, if an employee is well aware of what is expected and chooses not to follow that path, he or she is being insubordinate.

202        I have no doubt that as of the point in time on the morning of May 7, 2009, when Mr. A had been referred to secondary, was awaiting the ASD test, and shortly after that but before his arrest, when the grievor and Mr. Bakke spoke and then when the grievor was given the May 7 written instruction, she was clearly aware that Mr. Bakke was instructing her not to arrest Mr. A. Therefore, the first and second elements of the test for insubordination set out in Cavanagh are met.

203        Mr. Bakke was the grievor’s supervisor and was in a position to instruct her, which he did. This satisfies the third element of the test for insubordination.

204        The final element of the test for insubordination is that the employee did not comply with an order. The grievor arrested Mr. A despite the clear instruction that the arrest was not authorized; as such, the fourth element of the test for insubordination is met.

205        The grievor argued that she could not be in breach of the manual as the local Crown Counsel did not testify, so the only evidence is hearsay.

206        The evidence disclosed that Mr. Bakke sought and received advice from the local Crown Counsel. The fact that the Crown Counsel did not testify does not mean that he or she could not have provided direction or advice. However, Mr. Bakke sought advice or guidance on the matter from that person. From the evidence before me, it would appear that once he received that advice or guidance, Mr. Bakke made a determination, which became the instruction to the grievor not to arrest Mr. A.

207        The wording in the manual is that designated officers will apply the law in accordance with the ongoing jurisprudence and according to the direction of the local Crown Counsel. That direction, albeit conveyed via Mr. Bakke’s direction, was that Mr. A could not be arrested. There was no evidence that that advice was not sought or received or that it was wrong.

208        Given the significant amount of evidence I heard about the confusion over the licence suspension and about whether it had been made under the Alberta Traffic Safety Act or the Criminal Code, I suspect that although the argument was not explicitly made, if it was a valid arrest under the Criminal Code, then it would negate the grievor’s failure to comply with Mr. Bakke’s instruction. A lawful arrest under the Criminal Code that is within the jurisdiction of a BSO and the CBSA at the very least suggests that either the instruction to not arrest was potentially unlawful or inappropriate in the circumstances or that it could be something to consider when addressing the penalty that was imposed.

209        Section 2 of the Criminal Code is entitled “definitions”, and the term “offender” is defined as follows:

offender means a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt ....

[Emphasis in the original]

210        Subsection 259(4) of the Criminal Code states as follows:

Operation while disqualified

(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

[Emphasis in the original]

211        Subsection 259(4) of the Criminal Code uses the term “offender” in its opening sentence, as follows: “Every offender who operates a motor vehicle … while disqualified from doing so …”.For that subsection to apply, Mr. A had to be an offender. Under the Criminal Code,by definition, an offender is someone whom a court has determined is guilty of an offence (after either a finding of guilt or a guilty plea was made).

212        The evidence disclosed that as of May 7, 2009, Mr. A had not been convicted of an offence that led to his licence being suspended or disqualified. It had been suspended due to the provincial Traffic Safety Act, not the Criminal Code. Therefore, he was not an offender as defined in the Criminal Code; as such, he was not subject to s. 259(4) of the Criminal Code.

213        A BSO’s authority to arrest is set out in the manual. A BSO is authorized to arrest individuals under the Customs Act and the Excise Act (R.S.C., 1985, c. E-14) and in certain circumstances under the Criminal Code. He or she does not have the authority to arrest anyone under provincial legislation, which was clear in the evidence.

214        I am satisfied that the grievor never had the authority to arrest Mr. A for driving while his licence was suspended under provincial legislation. The order to not arrest him was clearly not unlawful. In addition, given that the grievor was not able to arrest Mr. A under the Criminal Code because no offence under that Act was being committed, and given that she did not have the authority to arrest him under the provincial Traffic Safety Act, she could not submit that while she was insubordinate, she was otherwise engaged in a lawful act and was appropriately carrying out her duties.

215        The grievor also alluded to a safety issue involving Mr. A, which was him driving after he had consumed alcohol.

216        In her arrest report, the grievor did not state that Mr. A had been intoxicated or “half-cut” as she later stated in her interview with Ms. Smith. She also did not mention that he had been in either state in her undated written statement or in her evidence before me. Sgt. Devoe’s interview made no suggestion that the grievor told the RCMP that Mr. A had been in either state. This point was never raised with Sgt. Devoe in her cross-examination. In fact, only during her interview on June 22, 2009, did the grievor suggest that Mr. A had been intoxicated.

217        In the grievor’s closing submissions, both of her representatives alluded to how important it had been to remove Mr. A from the road, yet there was absolutely no evidence that Mr. A did not have the competency to operate a motor vehicle, that his driving was a danger, and that he was a safety hazard. Indeed, had he been in such a state, I would have expected that it would have been mentioned to Mr. Bakke, Cst. Beaupre, and Sgt. Devoe on May 7, 2009; it was not.

218        I believe that the grievor took this position during her interview simply to justify her arrest of Mr. A with respect to the licence suspension after the fact and after she disobeyed Mr. Bakke’s instruction to her, once she knew she was subject to potential disciplinary action.

C. Credibility

219        For evidence of the grievor and of witnesses called on the CBSA’s behalf, particularly Mr. Bakke, Sgt. Devoe, and Ms. Smith, which was disputed, I accepted the evidence of those particular CBSA witnesses for the reasons that follow.

220        Issues of credibility are dealt with by the test articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354, in which the British Columbia Court of Appeal stated as follows:

…

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility ... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witness [sic], particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions....

…

221        The grievor stated the following, in the noted written statements:

1. In her official report dated May 7, 2009: “DEVOE directed me to use SEC 259(4) of the Criminal Code to arrest [Mr. A] for driving while disqualified and Cst. BEAUPRE would be down to the Port.”

2. In her undated written statement (that she stated she wrote on or about May 7, 2009): “Cpl. J. DEVOE directed me to arrest [Mr. A] using Sec 259(4) of the Criminal Code.”

3. In Ms. Smith’s interview notes dated June 22, 2009 (which the grievor initialled, confirming her statements), in which Ms. Smith put to the grievor that Sgt. Devoe requested the arrest and the grievor responded: “Absolutely.”

[Emphasis added]

222        While the grievor stated in writing in three different locations in the evidence that Sgt. Devoe had directed or requested that she arrest Mr. A, in her evidence before me, she categorically stated the opposite. She testified that no one had directed her to arrest Mr. A but that she did so based on an opinion she had reached and that she did not arrest him for, on behalf of, or at the request or direction of the RCMP.

223        The grievor testified that Mr. Bakke did not know why Mr. A’s licence had been suspended. She stated as follows about the shift briefing: “there was no clear direction to arrest or not. I voiced my opinion. No one knew the reason for the suspension. I said it didn’t matter.”

224        The evidence disclosed that at the relevant time, May 5 to 7, 2009, the grievor was adamant that she had the authority to arrest Mr. A. In her evidence before me, she reiterated that that was her belief. It is curious that, given her adamant position, after Mr. A had been administered the ASD test and after the CPIC check confirmed that his licence had been suspended (albeit not specifying under what legislation), she spoke to Cst. Beaupre and then Sgt. Devoe. Why would someone who is 100% certain that she has the authority to arrest regardless of whether the licence suspension was under the Criminal Code or provincial legislation speak to not just one but two RCMP officers?

225        I find the grievor’s call to Sgt. Devoe both telling and troubling. If the grievor believed that, as she stated, “100%”, she had the authority to arrest Mr. A under the Criminal Code, then there was no need to contact the RCMP. However, if she really did not believe 100% that she could arrest Mr. A, then it made sense for her to call the RCMP and eventually speak to Sgt. Devoe, when Cst. Beaupre could not provide any specifics. The only reason to call the RCMP at this juncture would have been to clarify if the licence suspension was due to provincial legislation (the Traffic Safety Act) or to a conviction (therefore, leading to a Criminal Code offence). It is troubling because it is the only question that needed to be asked and determined, and the grievor was well aware of this because she had had several discussions about this very question with Mr. Bakke between May 5 and 7, 2009.

226        In the end, the evidence of Sgt. Devoe and the grievor disclosed that this point was never raised with Sgt. Devoe. Once the issue of how the licence came to be suspended was determined, the grievor would have had her answer as to her jurisdiction to arrest. All she had to do was ask; she did not.

227        The grievor also never stated the basis for her belief, either at that time (May 5 to 7, 2009) or when she testified, as to why she believed 100% that she had the authority to arrest Mr. A. I was provided with no evidence as to why she believed that Mr. A could be arrested for the suspended licence. Indeed, she stated that at the time he arrived at the Coutts POE on May 7, 2009, no one knew if his licence had been suspended as per provincial legislation or due to a conviction. As this is the distinction that allows a BSO to make an arrest, it would have and should have been the one thing the grievor turned her mind to.

228        When she called Sgt. Devoe, the grievor knew the following:

• Mr. Bakke had given her the May 7 written instruction;
• the May 7 written instruction specifically stated that “...the arrest of [Mr. A] ... is not supported or authorized by CBSA Management ... as per the advice of Crown Counsel given this day May 7, 2009.”
• the CBSA and the grievor specifically did not know if Mr. A had been convicted of impaired driving or of any other offence that would have provided for suspending his licence; and
• the CBSA and the grievor specifically did not know if Mr. A’s licence suspension had been done pursuant to the Alberta Traffic Safety Act.

229        All that information was not only highly relevant but also critical to the discussion the grievor was having with Sgt. Devoe. Indeed, by not providing it to her, the grievor misled her as to the state of affairs with respect to Mr. A. Had Sgt. Devoe had been told that the grievor and the CBSA did not know the status of the licence suspension and that the local Crown Counsel believed it was a provincial suspension, Sgt. Devoe would have had an accurate set of facts upon which to provide information. The grievor’s rendition of what she stated to Sgt. Devoe gives the impression that a Criminal Code offence was being committed when that certainly was not the case, and the grievor certainly knew much more than she divulged.

230        The grievor and Mr. Bakke had several discussions over the course of May 5 to 7, 2009, about whether Mr. A’s licence suspension was as a result of a Criminal Code conviction or a provincial licence suspension. These discussions culminated in their discussion in which Mr. Bakke told her that the CBSA did not have the authority to arrest Mr. A as the belief was that the licence suspension had been done at the provincial level. The grievor testified that Mr. Bakke told her that he had spoken to the Crown Counsel, who had told him that he thought that the CBSA could not arrest Mr. A for driving with the suspended licence. The grievor testified that she told Mr. Bakke that she was 100% certain that the CBSA could arrest Mr. A. In her evidence, she did not make any mention of telling Mr. Bakke that if he was ordering her to not arrest Mr. A, he should put it in writing, yet in her written undated statement, she stated the following: “I asked A/Supt. D. BAKKE to put in writing what his decision was.”

231        The grievor’s evidence on these key points was not, as is stated in Faryna, in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Her evidence changed when it was convenient to support her action of arresting Mr. A., i.e., when she knew that Mr. Bakke did not support or authorize the arrest.

232        I also found very troubling the issue related to the disclosure of the ATIP request and the resulting documentation. During the course of the hearing, it was insinuated that the grievor did not possess documents disclosed to her via the ATIP process before the start of the hearing. Some of the documents produced to her via the ATIP process would have been subject to the production order I made before the hearing began. At the hearing I was led to believe that she did not possess those documents when the hearing started and that the CBSA should have produced some of them before the hearing, in compliance with my production order, which in fact was untrue.

233        The grievor had possessed the ATIP-requested documents before the start of the hearing in October of 2015, a fact that she was aware of when her representative made submissions on them at the outset of the continuation of the hearing on October 12, 2016. The grievor allowed the hearing to proceed under the veil of this misinformation throughout the evidence of Mr. Schaffer, whom she called as a witness, throughout her own evidence, and throughout Mr. Bakke’s evidence-in-chief, whom the CBSA called to give reply evidence. Only on the morning of October 14, 2016, when the issue was raised again after the CBSA’s counsel advised that its information suggested that she had had the ATIP documents since before the start of the hearing in October of 2015, and faced with the apparent contradiction, did the grievor admit to the fact that she had possessed the documents all along, from before the start of the hearing in October of 2015.

234        Her act of knowingly misleading the parties and I  was not only an abuse of process but was also significant because it was similar to the several contradictory statements she made and actions she took with respect to Mr. A’s arrest and to the investigation that followed, which I found went directly to the credibility of her evidence.

D. Similar Fact Evidence

235        The grievor testified and introduced into evidence a subsequent situation involving Mr. A, and driving while suspended in 2010. She stated that at that time she arrested him and was not disciplined but instead received a commendation. This is not helpful nor is it relevant. The totality of the facts that existed at that time (2010) were not before me nor was there any indication as to whether or not the grievor was instructed to not arrest Mr. A and as such whether there was a question of insubordination.

E. Conclusion

236        Therefore, I find that the grievor’s actions on May 7, 2009, of arresting Mr. A, constituted insubordination. As such, discipline was warranted.

237        With respect to the amount of the discipline imposed, Mr. Axten stated that when he held the disciplinary hearing, the grievor originally did not show any remorse, yet after a brief recess, it appeared that in fact she was taking some responsibility and began showing remorse. He also stated that he took into account her years of service and her discipline-free record, which is why the discipline was set at 30 hours. I have been provided with nothing that would convince me to alter it.

238        For all of the above reasons, the Board makes the following order:

V. Order

239        The grievance is dismissed.

April 24, 2017.